“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Saturday, February 15, 2014

Muncie City Judge Apparently Found Man Guilty of Contempt and Sentenced Him Without His Even Being Present

Curtis Westbrook

As a follow-up to my story about Muncie City Judge Dianna Bennington who gave a man, Curtis Westbrook, a 10 day sentence for passing a letter criticizing that the judge claimed disrupted her courtroom, the Muncie Star this morning suggests that Westbrook might have been found guilty and sentenced to 10 days in jail without his even being present:

..the 55-year-old [Curtis] Westbrook -- who on
Tuesday was arrested and began serving a 10-day jail term imposed by
Bennington after she found him in contempt of court -- maintained City
Court was not in session when he entered the auditorium on either Monday
or Tuesday.

Westbrook also insisted he had never encountered the judge on either day.

A
City Court document created on Tuesday reflects Bennington a day
earlier had found Westbrook "guilty of direct contempt of court by
creating confusion that disturbed the business and proceedings of the
court by distributing a letter to undermine the authority of the court
and to provide legal advice to defendants in the courtroom."

...

When he returned to the court on Tuesday -- this time to
attend a hearing in his son's case, not to pass out letters -- Westbrook
said baliff [sic] Hahn passed on a warning from the judge.

According to
Westbrook, he was told if he entered the auditorium and sat down, "and
she comes in, and the court opens up, you're going to be arrested for
contempt of court. Because you're disrupting the court. You're giving
advice."

Westbrook said he entered the courtroom to chat briefly
with his son -- again, before the judge took the bench and began the
day's proceedings -- but purposely did not sit down.

According to
Westbrook's account, he then left the auditorium and briefly visited
another office in City Hall. When he then returned to the building's
main lobby, near the entrance to the auditorium, he was taken into
custody by several city police officers and Hahn, and informed he had
been found in contempt of court.

Westbrook said he was not told
how long he was to remain in jail, learning of his 10-day sentence only
when he read an article in Thursday's edition of The Star Press.

As I have noted in my previous article on the subject, Judge Bennington clearly doesn't understand the difference between civil and criminal contempt. Civil contempt is remedial in measure and could have been used to stop Mr. Westbrook from passing out the letter in the auditorium/courtroom and to even confine him if necessary to keep him from disrupting court proceedings. But that's it. By proceeding to "sentence" him for his conduct, Judge Bennington crossed the line into criminal contempt. If Judge Bennington wanted Westbrook prosecuted, and sentenced to jail, she should have sworn out a complaint to the Delaware County Prosecutor. The Prosecutor has absolute discretion as to whether to file criminal contempt charges. If the charges are filed, Westbrook would have been brought before a judge (most certainly not Judge Bennington who could well be a witness in the case) and advised of his rights, including the right to a public defender if he can't afford an attorney, the right to present evidence and cross-examine witnesses, etc.

I received a copy of the chronological case summary relating to Mr. Westbrook's contempt. The action is styled Muncie City Court v. Curtis Westbrook and given a miscellaneous civil cause number. The entry doe not indicate that Mr. Westbrook was ever brought before the court or
provided any due process whatsoever before Judge Bennington imposed a 10 day sentence. That would be a problem. Last time I checked, both the United States and Indiana Constitutions require due process of law before someone is deprived of his or her liberty.

While Judge Bennington has immunity from being sued for Mr. Westbrook's almost certainly illegal incarceration, the City of Muncie and the Delaware County Sheriff don't enjoy that same level of immunity. She also has handed her political opponents an issue to make the claim she lacks the temperament and judgment to be a judge.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.